Domestic Violence Orders of Protection

Orders of protection

If you have been arrested for domestic violence, most likely an order or protection has been filed against you. This means that you must stay away from the person named in the order and it could also mean that you may be barred from entering your own home. The most dangerous part of you being subject to this order is that it may be used against you when you have done nothing wrong. A simple accusation of violating the order of protection will bring new charges and a new arrest. In New York, orders of protection can also be obtained in Family Court. Below are some frequently asked questions about that process.

Domestic Violence
(Orders of Protection)

Q. Can I get an order of protection against a person I'm not married to in Family Court?
A. Yes. You don't need to be married to the person to get an order of protection against them in Family Court.

Q. Who can I get an order of protection against in Family Court?
A. You can get an order of protection against any of the following individuals in Family Court:

A current or former spouse
Someone you have a child in common with
Another family member that you are related to by blood or marriage
Someone that you are or have been in an "intimate relationship" with. (An intimate relationship does not necessarily mean a sexual relationship, but is more than just a casual or social relationship--the court will decide whether the relationship is intimate based upon the facts about the relationship and how long it has lasted).

Q. Can I get an order of protection against a person I'm not married to in Criminal Court?
A. Yes. You can get an order of protection in Criminal Court against someone you are not married to and have no relationship with at all. In Criminal Court, you could file a complaint against the person you say abused you. Typically that person would be arrested, and the District Attorney would bring a criminal case against that person. You would be the "complaining witness."

Q. Must I choose whether to ask for an order of protection in Family Court or Criminal Court?
A. No. You can ask for an order of protection against your abuser in both courts at the same time.

Q. I'm being stalked. Can I get an order of protection?
A. Stalking is a form of Harassment. That is one of the crimes that allows you to get an order of protection. Other crimes include Assault, Attempted Assault, Menacing, Reckless Endangerment, and Disorderly Conduct.

Q. What is a petitioner and what is a respondent?
A. In Family Court, a petitioner is a person asking for an order of protection. (In Family Court, cases filed for an order of protection are called family offense cases.) A respondent is a person a petitioner wants an order of protection against. In a Criminal Court, that person is called a defendant.

Q. Can I have a lawyer?
A. In a Family Court, the petitioner and the respondent each have the right to hire a lawyer. If a petitioner or a respondent can't afford to hire a lawyer, they can ask the court to appoint a lawyer free of charge. In a Criminal Court, the district attorney's office or other prosecutor represents "the people." They help the person who wants an order of protection. The defendant can hire a lawyer or have the court appoint one free of charge if he or she can't afford it.

Q. How do I start a case?
A. Call the police if you feel you are in danger. You can go to your county's Family Court to file a family offense petition, go to the district attorney's office (or other local prosecutor's office), or go to the local Criminal Court. You can choose to do all of these things if you want.

Q. What is an Affidavit of Service in Family Court?
A. An "Affidavit of Service" is a paper that must be filed with the court showing that the respondent has been told about the case. Court staff will help you with important instructions about this document.

Q. What is a Court Attorney in Family Court?
A. A "Court Attorney" is a lawyer who works for a judge.

Q. What kinds of things can be put in my order of protection?
A. Among other things, the judge can order the respondent or defendant:

• not to assault, menace, or harass you or commit crimes of reckless endangerment or disorderly conduct towards you.
• to be removed by the police from where you are living.
• to stay away from you, your residence, your job, and other places you may want.
• not to telephone or e-mail you or write you letters.

The judge can also protect your children in the order of protection. For example, you may ask that any visitation with the children be supervised. In Family Court, the judge can order the respondent to pay temporary support and to give you legal custody of any children you may have with the respondent.

Q. What happens if I miss my court date?
A. If you are a petitioner in Family Court, your case will probably be thrown out and any temporary order of protection you had will be gone on that day. If you are a respondent in Family Court, the case can be done without you there (provided the petitioner gave you notice of the case) and an order of protection can be issued. As a respondent or defendant, a warrant may be issued for your arrest in either a Family Court or a Criminal Court if you don't show up.

Q. What happens if an order of protection is violated?
A. If a respondent or defendant violates (disrespects) an order of protection, the person with the order of protection can call the police, who can arrest the respondent or defendant. The person with the order of protection can file a "violation petition" in Family Court, talk with the district attorney's office (or other local prosecutor's office) or can go to the local Criminal Court. The person with the order of protection can choose to do all three of these things. Upon proof of the violation, the judge can make changes in the order of protection and put the respondent or defendant on probation. The judge can set a jail sentence.

Q. I moved to New York from the state that gave me an order of protection. Is the order of protection good in New York?
A. An order of protection from another state is still good in New York. You can get help on how to register your order of protection in New York from your local Family Court, Criminal Court, or police station.

NEW YORK CITY DOMESTIC VIOLENCE DEFENSE LAWYER

LAW OFFICES OF MICHAEL S. DISCIOARRO, LLC. CALL 917-519-8417

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Domestic Violence Orders of Protection